THE FIRST CIVIL LIBERTY--LIFE

Misguided Libertarians Are Hindering War On Terrorism (Stuart Taylor Jr., Aug. 4, 2003, National Journal)

Intelligence agencies will never be infallible. We should be making it easier, not harder, for their imperfect agents to protect us.
Misguided and outdated rules imposed on the intelligence agencies in the name of civil liberties before 9/11 contributed to their failure to prevent the attacks. In particular, the so-called legal "wall" between intelligence and law enforcement agencies helped foster the notorious reluctance of the CIA and FBI to share information.

The PATRIOT Act opened the way for better information-sharing by largely dismantling this wall -- with the help of a decision last November by the special Foreign Intelligence Surveillance Court of Review. The statute also extended to terrorism investigations some powers that prosecutors had long used in drug and organized-crime cases and updated anachronistic electronic surveillance rules to catch up with new communications technologies.

As for the dreaded "sneak-and-peek" provision (Section 213), the claims that it trashes the Fourth Amendment are far-fetched. Federal courts, including the Supreme Court, have authorized such searches for decades in circumstances in which immediate notification might defeat the purpose of the surveillance, including all wiretaps. Section 213 codified a legal standard similar to that used by the U.S. Court of Appeals for the 2nd Circuit, in Manhattan. While the Section 213 standard is more favorable to prosecutors than those used by some other courts, it is hardly a blank check: Notice may be delayed only for as long as "reasonable," and only when necessary to avoid endangering "life or physical safety," intimidation of witnesses, tampering with evidence, flight from prosecution, or "otherwise seriously jeopardizing an investigation or unduly delaying a trial."

The PATRIOT Act has also been blamed for detentions and other possible abuses that are completely unrelated to it. Consider the front-page New York Times article on July 21 hyping a leaked report to Congress by the Justice Department's inspector general. The article trumpeted (unproven) complaints by Arab and Muslim prisoners of "serious civil-rights and civil-liberties violations involving enforcement of... the USA PATRIOT Act." But these complaints -- mainly of beatings and verbal abuse by guards -- had nothing to do with enforcement of the PATRIOT Act. Its only relevance was that this report would not have been written at all but for Section 1001, which requires periodic reports to Congress of any and all civil-liberties complaints about Justice Department employees.

We need less media misinformation, less libertarian hysteria, and more judicious congressional oversight of the (unfortunately uncooperative) Justice Department. The PATRIOT Act's critics have pointed to precious little evidence that it is anything like the engine of McCarthyite witch-hunts they depict it to be. And while a few sections do pose some risk of overly intrusive FBI spying, there are worse things than that. One of them is being murdered by terrorists.

Mr. Taylor's concern that civil liberties be extended to the inmates at Guantanamo are, unfortunately, equally dubious. Posted by Orrin Judd at August 4, 2003 1:03 PM